Bloggings on Deportation And Removal

The United States Supreme Court on October 13, 2009 is set to hear an immigration related case that was appealed from the Supreme Court of Kentucky by a lawful permanent resident of the United States who plead guilty to a drug trafficking offense on reliance on his attorney’s advice that the guilty plea would have no adverse immigration consequences. See Padilla v. Kentucky (08-651).In reality any competent immigration lawyer should know that drug trafficking is unambiguously a deportable offense.

The issue before the Court is whether a lawyer who is representing a non-United States citizen in a criminal matter has the affirmative responsibility to properly advise their client of any adverse immigration consequences that may stem from entering a plea of guilty to a criminal charge.

Moreover, the Court must determine if a lawyer misadvises their client that there will be no adverse immigration consequences to a criminal conviction whether such misadvise constitutes ineffective assistance of counsel that would render the individual eligible for post-conviction relief.

The ultimate issue before the Court extends beyond immigration law because the Court must determine what criminal defense attorneys are required to explain to their clients, and whether the explanation must include clarification as to what consequences will collaterally occur if they are convicted of a crime.

The next question then arises if whether a criminal defense lawyer's failure to give proper advice will constitute ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution which mandates that an individual has a right to be provided with a lawyer in defense of a criminal charge.

It will be very interesting to see what the Supreme Court does with this case, and especially interesting to see how Justice Sotomayor rules in her first immigration related case.

The 9th Circuit Court of Appeals has just ruled that a conviction for violating Article 92 of the Uniform Code of Military Justice (“U.C.M.J.”) is not an aggravated felony, and therefore not a deportable offense.

Aguilar-Turcios v. Holder , Sept. 29, 2009.

The case involves an Ex-Marine Rigoberto Aguilar-Turcios who became a lawful permanent resident in 1996, and who joined the Marine Corp in June 2000.His conviction on under Article 92 relates to his unauthorized use of government computers for the purpose of surfing porn on the internet.On face value this seems innocent enough, but unfortunately the pornography that Mr. Aguilar was surfing involved minor children.

In September 2005, the government initiated removal proceedings against Aguilar, charging him with being subject to removal because they alleged that his conviction was an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(I).

Understandably, a person is deportable from the United States as an aggravated felon if they are convicted of an offense that involves child pornography.

The question that the 9th Circuit was forced to analyze was not whether Mr. Aguilar should be deported for surfing child pornography, but instead whether the minimal conduct required to substantiate a conviction under Article 92 in any way involves a depiction of a minor engaging in sexually explicit conduct.As a result, the 9th was required to ONLY look at the language contained in Article 92 to determine if Aguilar’s conviction was an aggravated felony, and not the fact that he was viewing child pornography.

In order to determine if a conviction under Article 92 constitutes an aggravated felony the 9th utilized a system of evaluation known as the categorical approach which requires an examination of the language of the underlying statute that an individual has been found guilty under. See Taylor v. United States, 495 U.S. 575, 600-02 (1990).Under the categorical approach the court is not permitted to consider the specific conduct that resulted in the conviction or the circumstances under which the crime was

Committed.

To be convicted of violating Article 92 , an individual must have engaged in conduct that:

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties . . . .

After reviewing the plain language of Article 92 the Court determined that although a violation of section 2-301(a) may involve “pornography,” an individual may be found to be in violation of the statue without committing an offense that involves pornography, and moreover the minimal conduct contemplated under the statue to substantiate a conviction does not require the commission of an act involving a depiction of a minor engaging in sexually explicit conduct.

The Court reasoned that because a violation of Article 92 through violating section 2-301(a) does not necessarily involve a visual depiction of a minor engaging in sexually explicit conduct, Aguilar’s Article 92 conviction could not categorically be considered an aggravated felony, and therefore he is not deportable.

It appears that Mr. Aguilar owes a debt of gratitude to his lawyer David B. Landry, out of San Diego, California.Job well done Mr. Landry.

Today I am working on the issue of whether former exclusion proceedings should be reopened when there has been a change in law that materially affects an individual’s eligibility for relief from “deportation”.

My argument is that where an alien's motion to reopen/remand is based on a change in the law, the Board of Immigration Appeals must consider whether this newfound ability to file for relief from removal warrants a favorable exercise of discretion to lift an exclusion order and reopen proceedings.

In my specific case, we filed a motion with the Board of Immigration Appeals to reopen the former exclusionary proceedings in consideration of my change in law argument. The Board denied our motion without fully addressing the above issue, and we have filed a Petition for Review with the Second Circuit Court of Appeals to challenge the Board’s denial.

I have a Pre-Argument Conference scheduled this Friday to see if there is the possibility of resolving my client’s case without the need for briefing.

Just to bring some humanity to an otherwise esoteric legal issue my client is married to a United States Citizen, and has two United States Citizen Children who are a product of the marriage, one of which has significant medical issues.This is of importance because my client is from China, and could become subject to persecution relating to China’s coercive family planning policies.

Our client is a Canadian citizen. Unfortunately, eighteen years ago he attempted to enter the United States using someone else’s passport. As a result, he is inadmissible to the United States for life due to his attempted entry fraud.

Three times during the past five years he unsuccessfully applied for admission to the United States , and thereafter he applied for a nonimmigrant waiver of inadmissibility, which was denied.

At this point, we were retained. We prepared a new waiver application and supported it with a Legal Brief and voluminous exhibits showing why he was deserving of a favorable exercise of discretion.

The waiver was approved for multiple entries as a visitor for business and pleasure.

In an unpublished decision (Madaminova v. Holder, Sept. 25, 2009), the Second Circuit Court of Appeals has put their foot down ruling that an Immigration Judge must give sufficient reasons for denying an application for asylum, and may not simply just say no.

The Court ruled that conclusory determinations regarding incidents an asylum applicant describes in their application for asylum are insufficient, and that the Immigration Court must explain why it is denying the asylum application.

The Court further ruled that the Immigration Judge must identify the legal standard relied upon in assessing whether the testified experience constitutes persecution, must consider the cumulative effect of an asylum applicant’s experiences as opposed to assessing them in isolation, and may not simply state that the past described incidents simply do not rise to the level of persecution.

Although this case does not have binding precedential effect on other cases arising out of the Second Circuit, it sends a message to Immigration Judges that you can’t just say “no” without explaining your answer thereby precluding an asylum applicant from seeking meaningful judicial review of the denial.

About The Author

Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law – including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.